divorce from bed and board was allowed in case of bigamy only, on request of the first wife or husband, made in one year after conviction."1

Absolute divorces were, however, granted by legislative authority. Of these an example occurs in 1769, when there was laid before the council a "Bill sent up by the Assembly for the Governors concurrence, entitled 'An Act to Dissolve the Marriage of Curtis Grubb, of the County of Lancaster, Iron Master, with Ann, his wife, late Ann Few,"" and to enable them to contract further matrimony. After amendment this bill was approved, and Curtis was allowed to "take to Wife any other woman during the Natural Life of the said Anne, in the same manner as he might or could do if she, the said Anne was actually Dead." In the same way, on March 21, 1772, the "marriage of George Kehmle of the City of Philadelphia, Barber, with Elizabeth, his wife," was dissolved; but on April 27, 1773, the decree was declared void by the king in "an Instrument of Writing under the Privy Seal;" and on the 11th of next October the royal veto was published by a proclamation of the governor, Jonn Penn. There is also extant an example of annulment of wedlock by the legislative body. On March 20, 1772, a bill to declare void the "pretended marriage of Rebecca Vanakin with a Certain John Martin" was presented to the governor; but after six months' deliberation, on September 19, it was returned to the assembly with his excellency's veto. There is no evidence to show, however, that divorces either partial or absolute were at all common in the Quaker province.

4

1 GORDON, Hist. of Pa., 557. But GORDON (op. cit., 70) is in error when he states that by the Great Law divorce was sanctioned after a "second" offense; and regarding this law some other mistakes occur.

2 Pa. Col. Rec., IX, 564, 586, 567, 568, 580.

▲ Ibid., 40, 53, 54, 55, 104, 105.

3 Ibid., X, 26, 42, 104, 105.

CHAPTER XVI

A CENTURY AND A QUARTER OF MARRIAGE LEGISLATION IN THE UNITED STATES, 1776-1903

[BIBLIOGRAPHICAL NOTE XVI.-For this chapter all the statutes relating to marriage enacted in fifty-two states and territories since the Revolution have been examined and compared, Hawaii not being included. The session laws and various compilations of statutes consulted are described in the Bibliographical Index, V, and need not here be named in detail.

Hitherto a history of matrimonial legislation in the United States has not appeared; but summaries of the laws of the various states have been made for particular periods. Of these the most important is the accurate digest for 1887-88-the time of compilation-contained in Wright's Report on Marriage and Divorce (Washington, 1889; reprinted without change, 1897). There is also a summary in Stimson, American Statute Law (Boston, 1886), I, 664 ff.; and for the sake of completeness may also be mentioned Vanness, A Digest of the Laws of New York and New England, on Marriage, Dower, Divorce, etc. (Hartford, 1877); Noble, A Compendium and Comparative View of the Thirty-Eight State Laws of Marriage and Divorce (New York, 1882); with the discussion of Cook, "Reform in the Celebration of Marriage," in Atlantic Monthly, LXI (Boston, 1888); Convers, Marriage and Divorce in the United States (Philadelphia, 1889); Snyder, The Geography of Marriage or the Legal Perplexities of Wedlock in the United States (New York, 1889); Ernst, The Law of Married Women in Massachusetts (2d ed., Boston, 1897); and Whitney, Marriage and Divorce (Philadelphia, New York, Boston, and Chicago, 1894). Consult the parliamentary return of Marriage Law and Divorce Law in foreign countries and the colonies (London, 1894); and see also Bibliographical Note XVIII.]

I. THE NEW ENGLAND STATES

THE foundation of the marriage law of the United States was laid long before the War of Independence. Some features have since been pruned away, and others have been changed or added; but the existing forms of celebration, the modes of registration, and the leading principles of matri

monial jurisprudence had already been developed. The century has produced a great mass of legislation; but so far as it is new it is concerned largely with administrative details, often of very great importance as determining the effective character of the law.

a) The solemnization.-In New England before the end of the colonial period the religious ceremony had long since been made optional with the lay celebration before a magistrate, which was the only form allowed in the beginning. This system is continued after the Revolution. As elsewhere in the country, the minister and the justice of the peace now share the business between them. The earlier statutes are generally more strict than the later regarding the place of residence and the territorial jurisdiction of the persons authorized to celebrate matrimony. For example, by the Massachusetts act of 1786 any justice of the peace may solemnize lawful wedlock within his own county; while a minister of the gospel, if "stated and ordained," may act only in the "town, district, parish, or plantation where he resides," provided one of the persons lives there too. If a place be destitute of a minister of any denomination, then a neighboring clergyman of the same society may serve; but only in the town or district where the bride or bridegroom dwells.' In 1821 such ordained and stated minister, although living outside of the district over which he is settled, may conduct the ceremony at his own place of residence or at that of either of the persons, provided one or both of them is a member of his congregation. If there be no such minister in the place, then the couple desiring to be married may go to any other clergyman in the commonwealth, who in such case is authorized to act. All previous laws on the subject are repealed in 1834, when a new statute empowers the min

1 Laws of the Com. of Mass., 1780-1816, I, 321.

2 Act of Feb. 12, 1821: Laws of the Com. of Mass. (1821), 507. This somewhat extends the provisions of the act of Feb. 20, 1818: ibid. (1818), 550.

2

ister or justice, each in his own place of residence or in that of either of the persons, to perform the ceremony, if at least one of them lives in his official district.' The present law is still broader in its terms. A marriage may now be solemnized in any place within the commonwealth by Jewish rabbis duly accredited; Friends according to their rites; any minister of the gospel, ordained according to the usage of his denomination, who resides in the commonwealth and continues to perform the functions of his office; or, until a few years ago, by any justice of the peace. By the act of May 23, 1899, an important change is made. Henceforth no justice of the peace may solemnize a marriage unless he also holds the office of city or town clerk, city registrar, clerk of a court, or that of assistant in either case; or "unless he shall have been specially designated by the governor." The latter may at his discretion name justices of the peace "who may solemnize marriages in the city or town in which they severally reside." Each place is to have at least one such designated magistrate; but otherwise the number is not to exceed one for every five thousand of its inhabitants. No justice may act without a certificate of designation, which the governor is authorized to revoke whenever he thinks fit; and every year in January the secretary of the commonwealth is required to send to the respective clerks or registrars a list of the justices to which authority is thus granted.3 However, by the Massachusetts law is prescribed the wise, though unique, condition that the ceremony may be conducted only by a person who is able to read and write the English tongue.*

1 Act of April 1, 1834: Laws of the Com. of Mass. (1834), 252-57.

2 Pub. Stat. (1882), 811. The law has remained substantially the same since 1835: see Rev. Stat. (1836), 477; Supp. to Gen. Stat., 1860-1872, I, 540.

3 Acts and Resolves of Mass. (1899), 379.

4 Act of April 22, 1896: Acts and Resolves, 257. This statute further declares that "no rabbi of the Israelitish faith shall solemnize marriage until he has filed with the clerk or registrar of the town or city where he resides a certificate of the estab

The course of legislation in the other states has been much the same as in Massachusetts previous to 1899. In all of them throughout the century, except in Rhode Island, justices of the peace in their respective counties have had authority to solemnize marriages. In that commonwealth any justice of the supreme court may now act,' as earlier could the assistants, justices of the peace, and justices of the courts of common pleas. For over fifty years the judges of the county and higher courts in Connecticut have had the same power; and so during the assumption period had the councilors, judges, and even the governor and deputy governor, in Vermont. But in that state, after the admission to the Union, the justice of the peace has always been the only lay officer empowered to conduct the ceremony.

The law governing the ecclesiastical celebration has been a matter of slower growth and of much experimentation. That of Massachusetts has already been described. The New Hampshire statute of 1791 provides that marriage may be celebrated by any "ordained minister" in the county where he is settled or has his permanent residence. For many years thereafter no change was made in that requirement. But in 1833 every resident "ordained minister,” if in "regular standing" with his denomination, is authorized to act throughout the state, after causing the "credentials of his ordination to be recorded in the office of the clerk of

lishment of the synagogue of which he is rabbi, and of the date of his appointment thereto, and of the term of his engagement."-Ibid., 257. Cf. Rev. Laws (1902), II, 1349-50, with somewhat different wording.

1 Also the wardens of the town of New Shoreham: Pub. Statutes (1882), 416; Gen. Laws (1896), 621. The justice has power in any town of the state.

2 Pub. Laws of R. I. (1798), 481-83; ibid. (1844), 267. By this date the justice of the peace had ceased to act.

3 Revised Stat. (1849), 273; Stat. of the State of Conn. (1854), 374, 375; Gen. Stat. (1875), 186; ibid. (1887), 609; ibid. (1902), 1086.

4 SLADE, State Papers, 292, 484. Cf. Laws of the State of Vermont (1798), 330.

5 Act of Feb. 15, 1791: Laws of the State of N. H. (1797), 295, 296.

6 Cf. Const. and Laws (1805), 296; Laws of the State (1815), 350, 351; ibid. (1830) 172-74.